Peck v. Peck

Justin K. Peck, appellee, v. Victoria Lynn Peck, now known as Victoria Lynn Arrowsmith, appellant.

No. A-20-919

Court of Appeals of Nebraska

November 16, 2021

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Dodge County: Geoffrey C. Hall Judge. Affirmed.

Timothy M. Schulz, of Yost Law Firm, for appellant.

Avis R. Andrews for appellee.

Pirtle, Chief Judge, and Moore and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Welch Judge.

I. INTRODUCTION

Victoria Lynn Peck, now known as Victoria Lynn Arrowsmith, appeals the order of the Dodge County District Court modifying the decree dissolving her marriage to Justin K. Peck. Victoria contends that the district court abused its discretion in determining that a material change of circumstances occurred warranting a modification of the dissolution decree, specifically dividing final decisionmaking authority between the parties, expanding Justin's parenting time, and ordering Victoria not to move the children from Sarpy County or Cass County without permission of the court or mutual agreement of the parties; calculating child support and awarding Justin an abatement; and awarding Justin $500 in attorney fees. For the reasons set forth herein, we affirm in part, and in part reverse and remand the cause with directions.

II. STATEMENT OF FACTS

1. Previous Proceedings

The parties were married in November 2012. During the parties' marriage, they had twin sons, James Harold Peck and River Dillon Peck, born in 2015. In January 2019, the district court entered a decree dissolving the parties' marriage. The court awarded the parties joint legal custody of James and River with primary physical custody awarded to Victoria. Justin was awarded visitation every other weekend starting at 5 p.m. on Friday until 5 p.m. on Sunday and a weeknight visitation as mutually agreed upon by the parties. The court's child support worksheet listed Justin's total monthly income as $4, 506 and Victoria's total monthly income as $1, 560 and provided Justin a credit in the amount of $175 per month in health insurance premiums paid for the minor children. Justin was ordered to pay child support in the amount of $1, 028 per month which included an adjustment based upon the basic subsistence limitations found in § 4-218 of the Nebraska Child Support Guidelines. The child support order also included a provision that Justin's child support obligation would be abated to 80 percent for the months of June, July, and August. The dissolution decree further provided that Victoria could remove the minor children from Nebraska to Missouri Valley, Iowa. The order and parenting plan provided that if Victoria moved from Missouri Valley, she was required to provide advance notice to Justin, and the parties were required to attempt to resolve issues in mediation prior to returning to the court. Justin appealed to this court; however, on May 31, 2019, his appeal was dismissed at his request.

Less than 1 month later, on June 20, 2019, Justin filed a complaint to modify the parties' dissolution decree seeking legal and physical custody of the parties' two minor children, or in the alternative, that he be awarded joint legal and physical custody.

In October 2019, the district court entered a temporary order modifying Justin's parenting time to include every other weekend from 5 p.m. on Friday until Monday "when [Justin] shall deliver the minor children to preschool." On the alternating week, Justin's weekday parenting time was modified to specify that it was to occur from 5 p.m. to 8 p.m. in Bellevue, Nebraska, where Victoria had moved. The parties were ordered to comply with all other terms of the original decree.

2. Modification Hearing

The modification hearing was held in February and August 2020. Witnesses at the hearing included Victoria; Justin; Alicia Hilker, Justin's friend; and Renee Peck, Justin's mother. The following is a summary of evidence adduced at the hearing governing the status of the parties and their children.

(a) Justin

From the time of the original dissolution to the time of the modification hearing, Justin has resided in Fremont, Nebraska, renting his home from his parents with the expectation that he would purchase the home at a later date. At the time the decree was entered, Justin was employed in Omaha, Nebraska, and also working in the Navy Reserves for which he provided income verification to the court. His income was calculated at $4, 506 monthly. Justin's enlistment ended in January 2020, and he no longer receives income from that source. Beginning in January after the decree was entered, Justin took another job in Omaha making $30.26 an hour. He then received a raise on or about July 2020. At the time of the modification, Justin's monthly income was calculated at that rate totaling $5, 385. Starting in January 2020, Justin stated that he provided health care coverage for the children through his new employment. This coverage was provided so long as Justin paid his monthly union dues in the amount of $36.25. Justin indicated that his monthly dues would not change if only he, and not the children, were covered under the policy. Justin stated that the amount he pays to cover himself or the children is not calculated separately. However, Justin testified that he timely paid his union dues throughout the course of his employment.

(b) Victoria

At the time of the original divorce decree Victoria was living in Missouri Valley and was attending physical therapy school. She testified that she eventually discontinued her schooling due to the difficulty she encountered in parenting and attending school at the same time. At the time the original decree was entered, Victoria was unemployed, and her income for the child support determination was calculated at the minimum wage of $9 per hour. At the time of the modification trial, Victoria had remarried and moved in with her husband in Bellevue. She testified that the timing of their move related to flooding of her Iowa home which she documented in a letter to Justin dated March 28, 2019.

Upon moving to Bellevue, Victoria obtained employment as an appointment scheduler earning $13 per hour. She worked between the hours of 8:30 a.m. and 4:30 p.m. and utilized her husband, brother, parents, and grandparents to assist in providing childcare during her working hours. Victoria quit this job after about 2 months to be a full-time mother. Victoria testified that shortly thereafter, she began a 14-month cosmetology program. Upon completion of the program, Victoria testified that she assumed she would earn at least $13 per hour.

Victoria testified that the two children receive health care coverage through Tricare as dependents of Victoria's husband. She further testified that she and her husband recently made an offer on a home in Plattsmouth, Nebraska, and were awaiting final approval by the Veteran's Administration.

(c) Children

Both parties and the district court agreed that the children currently have a positive home life, are receiving appropriate medical care, are active in church, attend school and perform well, and actively engage in activities. At the time of trial, James was participating in dance and both boys were expected to play baseball for the team that Justin would be coaching. When Victoria moved to Bellevue, the boys were enrolled by both parents in preschool at Chandler View Elementary School. The parents both attended the open house and subsequent parent-teacher conferences at the school. Justin participated in visitation as ordered in the decree. Both parties provided transportation to and from visitation during this time. At times, both parties appear to have been unwilling to accommodate the other for extra visitation; however, on other occasions they accommodated each other's requests. Justin attends medical appointments scheduled by Victoria for the children when he is available to do so. The parties agreed that they communicate regularly and are cordial with each other on most occasions. The evidence indicated that both parties have adequate support systems with friends and family.

3. District Court Order

At the close of the evidence, the court took the matter under advisement for 20 minutes and then provided an oral ruling regarding the modification of custody and support. In statements made from the bench, the district court found that there was sufficient evidence showing a material change in circumstances occurred which warranted a modification of the original dissolution decree. Specifically, the court determined that there was a material change in circumstances relating to Victoria's relocation from Missouri Valley to Bellevue with the expectation of closing on a home in Plattsmouth. Additionally, the court found that there was a material change in circumstances as it related to the parties' income because Victoria was not working and Justin's income had increased. Victoria's income at the time of the decree was calculated by the court utilizing an earning capacity of $9 per hour even though she was unemployed. Victoria later obtained employment earning $13 per hour upon moving to Nebraska. Following the modification trial, the court calculated Victoria's earning capacity at $13 per hour which was consistent with her wage rate in her former job and consistent with the amount she testified she could earn upon completion of the cosmetology program. Justin's income at the time of the decree was calculated using his earnings from his prior employment and his pay from the Navy Reserves. Because Justin had obtained new employment after the decree, the court calculated his income utilizing...